Some background information may be useful in appreciating the context of the proposed legislative instrument. The EU provided in the e-Commerce Directive 2000/31/EC for exemptions from liability for copyright infringement for intermediary service providers in cases of mere conduit, caching and hosting, upon certain conditions. This was to provide a framework for the development of e-commerce and telecommunication industries. Although such providers are thus free from civil and criminal liability in certain circumstances, the EU Copyright Directive 2001/29/EC (as allowed for in the e-Commerce Directive) provides that rights holders must be in a position to apply for injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right.
A High Court judgment has held that, by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and suggested that Ireland did not comply with EU law. As you will appreciate, for a member of the European Union, non-compliance with EU law is a very serious matter. For the avoidance of doubt, it has been decided to introduce a Statutory Instrument to restate the position that was considered to pertain prior to this judgment.
In granting such injunctions the Courts must take account of various judgments of the Court of Justice of the European Union. EU law has held that copyright is not an absolute right but must be balanced with other rights protected by the Charter of Fundamental Rights of the European Union. The Court of Justice of the European Union, on 24 November 2011, clearly laid out these principles that will guide all national courts in future (Case C-70/10-SABAM).
These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.